IP, technology, human rights

Lea Shaver

Is a legal scholar specializing in intellectual property and human rights. Her research examines the impact of IP protection on technological innovation.
She teaches intellectual property, patent law, and copyright law as an Associate Professor at Indiana University Robert H. McKinney School of Law.

I’m excited to share that I’ve just contracted with Yale University Press to publish my book on book hunger and social publishing. I’m really looking forward to writing the book.

The best part of the deal is YUP’s support for my vision for helping the book reach a wide audience, to achieve the greatest social impact. They’ve signed onto a Creative Commons license (non-commercial) and will be marketing it as an ac-trade crossover (think Nudge).

My project examines “social publishing” – the world of non-profit publishers who are mission-driven to bring books to audiences that would otherwise be neglected by the mainstream publishing industry, because there’s not enough potential profit to be made serving those audiences, at least under current business models.

This might be so because the audiences have niche needs in terms of book format or language, and/or too little disposable income. For example, one social publisher might target blind readers, another might focus on children’s books in India’s many languages.

From my preliminary research, I think the most interesting story to tell about this dynamic world of social publishing is the role of “mission-driven innovation.”

Social publishers are forced to radically innovate. To deliver books effectively in these difficult market segments where traditional business models just don’t work, social publishers have to develop new approaches to content acquisition, editing & production, and marketing & distribution.

They are at the forefront of innovating new ways to format books, to translate them, to leverage peer production, to deliver them to geographically remote areas, to drive down the costs of printing and distribution, and to develop alternative funding models. This business model innovation is hard work, and it comes with a high risk of failure.

So why do they do it?

Social publishers’ motivation to engage in the difficult work of innovation is not the conventional one of monetary incentives reinforced by copyright protection. (If your goal is profit, you should sell books to conventional audiences.) Instead, social publishers are driven by a strong sense of mission, to solve a social problem, and meet a particular social need.

In some contexts, the mission motive is actually more powerful than the profit one. Financial incentives have not been successful at motivating publishers to serve blind readers, or children who speak Maharathi. The economics just don’t pan out. But the motivation of social mission is generating real results.

Could this be true more generally? Innovation is expensive. And risky. Potential profits have to be extraordinarily high to make innovation a rational strategy for a profit-drive organization. Mission-driven organizations may be more willing to tackle innovative challenges, if philanthropic resources are made available.

The business-model innovations of social publishers may eventually be imitated more broadely by for-profit publishers, as the book industry follows the music industry through the digital transition. But the study of this sector may also point to a broader policy strategy for incentivizing innovation, through government support of charitable efforts tackling market failures.

In “Copyright and Inequality,” I explored the ways in which copyright protection often – perhaps inevitably – fails to incentivize books for certain audiences, because they are too poor, speak the “wrong” languages, or require niche content or formats. The project I will present at the Beyond IP 2 conference examines a possible solution to copyright’s inequality problem, one which holds the potential to finally bring books to billions of readers long neglected by the mainstream publishing industry.

Social publishers are defined by the centrality of a social mission rather than the pursuit of profit. For this reason, they often rely heavily on social subsidies and treat their product as a social good to be distributed free or at cost. Often, but not always, social publishers also engage in social production. These alternative content-production models leverage intrinsic motivations, social networks, and peer production enabled by digital platforms.

My project analyzes this emerging phenomenon to understand how law and policy can help social publishers reach their fullest potential, and to derive broader lessons from this example of intellectual production without IP.

Like open access journals, social publishers often favor Creative Commons licenses to maximize readership and impact. This suggests that the potential of open access publishing is not unique to academic scholarship, but can work across many genres.

To me, the most fascinating part of this study is the emergence of new business models in book publishing. When you speak to organizations in the social publishing space, they emphasize experimentation and innovation. They are trying to figure out what works. They not only need to figure out the content origination, but new methods of marketing, distribution, and funding.
A third emerging insight is that social mission can be a powerful driver of innovation. To reach readers at the bottom of the pyramid, social publishers have had to develop radically different business models for content production, marketing, and distribution. As a result, social publishers find themselves on the leading edge of digital production and distribution. As books follow music through the digital transition, the path that social publishers are paving may represent the future of the industry.

For more than a year, I’ve been working closely with Farida Shaheed, the United Nations Special Rapporteur in the field of cultural rights. Our work has led to two reports, one on copyright and one on patents, examining their implications for the right to science and culture.

The report unapologetically adopts a human rights framework for normatively evaluating copyright policy. This means a concern both for the human rights of individual authors, and for the human rights of readers, listeners, and other audiences.

The report emphasizes that the human right of protection of authorship requires both more and less than current copyright frameworks, and that protection must always be balanced with concern for equitable access and broad participation.

Content industry representatives were active in attempting to influence the report. There were more civil society filings during the drafting of this report than anything else the Special Rapporteur worked on in her six-year term. These came largely from publisher, film, and music trade associations, rather than from human rights organizations.

Yet the final report’s assertive human rights perspective differed greatly from the industry perspective. This gap prompted significant criticism from member states in Europe and the United States.

The report’s recommendations hold significant power to shift the political conversation, because they focus on questioning how well copyright policy ultimately serves artists and audiences.

Indeed, the report has already been integrated into the copyright reform proposal of European Parliamentarian Julia Reda for the Committee on Legal Affairs.

Earlier I posted about a project I was working on, examining the impact of patents on innovation in the early lightbulb industry. The research has now ripened into a draft article, and I had the chance to share the work through an interview on David S. Levine‘s radio show.

If you’re not already a Hearsay Culture listener, the KZSU-FM (Stanford University) show is aired locally and podcast globally from the website. Each hour-long episode features a scholar working in the areas of technology and communications talking about their recent work.

The show routinely features much bigger fish than myself, and is definitely worth tuning in regularly.

I was willing to pay $25 to obtain rights to share a thirty-second clip through this online licensing clearinghouse. But they wouldn’t even accept a bid lower than $4690.

I guess you’ll have to google “Armstrong Back Home Again in Indiana” and watch the infringing video on Youtube instead. The bootleg music video is much more entertaining than a 30-second audio clip anyway.

This week I presented Illuminating Innovation at the Southeastern Association of Law Schools conference. This work in progress uses Thomas Edison’s lightbulb as a case study to “shed light” on how patents impact innovation.

This twenty-minute recording offers a glimpse of the project, through the lens of Mark Lemley’s patent racing theory:

This is my first year attending the SEALS conference, and I’m completely sold on coming back next year. I’ve seen a number of great panels, but what really stands out in my mind is the feel of the conference… informal, accessible, and welcoming.

They also have a truly outstanding system not just for helping brand new scholars navigate the conference, but for really catering to our needs. They reserve speaking spots for the newbies, host a special lunch, and assign you a mentor… I got very lucky in being matched with Dennis Cargill.

I also appreciated that there has been a substantial set of programming around teaching. Last summer I attended the AALS Workshop for New Law Teachers in Washington D.C., which was fantastic. But I feel like I’m getting a second wave of good new ideas here, which is great.

I’ve had the privilege to be involved with all four of Yale’s A2K conferences, first as an ISP student fellow, and now as the director of its access to knowledge research program.

This year’s conference, however, is particularly close to my heart. For the first time, we’re approaching access to knowledge from the perspective of a particular theme: its intersection with human rights, the focus of two of my recent articles.

For the full agenda of the conference, as well as links to blog posts, archived video, and additional resources for each panel, please visit http://yaleisp.org/2010/02/a2k4main.

Below the jump, a summary of the opening remarks I will make on Friday morning…